Director of Public Prosecutions v Do

[2014] VCC 2257

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01685

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUNG VAN DO

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2014
DATE OF SENTENCE:	17 December 2014
CASE MAY BE CITED AS:	DPP v Do
MEDIUM NEUTRAL CITATION:	[2014] VCC 2257

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Roper
For the Offender	Ms J. Munster

1HIS HONOUR:  Hung Van Do, you can stay seated for the time being.  You have pleaded guilty to an indictment charging you with cultivating a narcotic plant, namely cannabis L, in a commercial quantity, the offence occurring between 29 January 2013 and 28 June 2013 and you have also pleaded guilty to a charge of theft between those dates in relation to the electricity which was consumed in the cultivation process.

2You have admitted a prior court appearance.   I note that the nature of the offending conduct for which you were dealt in November 2012 was of a different character and does not seem to me to be of any significant relevance as far as sentencing is concerned.

3The prosecution tendered and relied upon a summary of the evidence in the case and that is Exhibit A.   It is marked, "Agreed statement of facts" and in its edited form - and I note that there was an edit to paragraph 7 of the document - it is an agreed statement of facts. 

4The circumstances were that the authorities were drawn to the property at 33 Eaglehawk Circuit, Cairnlea at about midnight on 29 June 2013 because of a fire that was burning at the premises.  The cause of the fire is not clear but it is reasonable to infer that it was likely to have arisen from the electrical meter bypass system that was used to steal the electricity for the purposes of cultivating the cannabis that was found on the premises.

5The Fire Brigade found that the premises had been set up as a hydroponic grow house.  Four rooms contained hydroponic growing systems and examination revealed that there were a total of 103 cannabis plants of varying size with a combined weight of 7.02 kilograms.  The limit of cultivation simpliciter is I think - is it 99 or 100 plants?

6MR ROPER:  100.

7HIS HONOUR:  100 plants.  So anything over 100 plants falls into the category of cultivating a commercial quantity.  It does not quite stop there because you admitted your role as a crop sitter which you had undertaken for money.   You received a total of $18,000 during the period of about five months during which the offending conduct occurred and you were the person responsible for tending the crop on a daily basis.

8You were not found at the premises when the Fire Brigade arrived but your dog was.   It had a microchip which identified you as the owner.  You were clearly alerted by the police to the fact that they were looking for you and you ultimately surrendered yourself to the Sunshine Police Station on 27 June of this year, almost 12 months to the day after the fire had taken place.

9As I indicated during the course of the plea hearing, it is to be inferred - and indeed I think it is supported by some of the admissions you made in the interview - that there had been other crops than the one that was found on the premises during the period of your cultivation.   Therefore although the crop itself that was found on 29 June 2013 was at the very low end of the scale of commercial cultivation, the overall picture is one of a venture which was not right at the bottom end in terms of your culpability for this kind of offence.

10However, you are to be sentenced as a crop sitter and it is reasonably to be inferred that persons who take the risks, who are engaged for that purpose, are generally paid a salary or on an intermittent basis for their work, commensurate with the work required and the risks to be taken and rather than as a participant in the overall profits of the criminal venture.

11It was a substantial criminal venture with a degree of sophistication about it, unfortunately of a kind all too common amongst the cases that come before this court.  You provided the police with a statement and indicated a willingness to give evidence in proceedings against the person "John" who engaged you to act as the crop sitter.   But the nature of the information you provided is so sparse that it cannot be said to have any or any significant evidentiary value unless it turns out that John ultimately is apprehended and you are able to identify him as that person.  As things stand at the moment, that seems a remote possibility and for those reasons I do not regard your assistance as being of significant value to the prosecution and I do not think that it is appropriate for me to give you a significant discount for the "assistance" that you have given nor for the promise of future cooperation in providing evidence if called upon to do so in any further criminal proceedings arising from this investigation.

12Nevertheless, it does seem to me to be relevant.  It is apparently the view of the informant that you did your best.  I might be a little bit more cynical but that is really neither here nor there.  I am urged to look at that statement as some indication of remorse on your part and I indicated that it seemed to me to be a relevant consideration and one which is to be put into the balance in the credit side and might have the capacity to soften my attitude to sentencing options in the case.

13Your counsel helpfully provided me with an outline of submissions and a relevant history of your background and your arrival in New Zealand and in Australia.  It is apparent that you had a pretty disrupted early life and you ultimately obtained citizenship in New Zealand.  Your father moved to Australia without you and because your mother had already returned to live in Vietnam.   You were left with a friend in New Zealand.  You came to Australia in about 2004 and moved to Sydney to be with your father.   You obtained work, then moved to Melbourne in 2011/2012 aged 24 for work.

14It seems that you have been able to find work.   You worked in the construction industry and tiling industry in both Sydney and Melbourne but you became unemployed and unable to find work for a period of about six months.  I am told that you lived off savings for a period.  It seems apparent that you also spent money on gambling and got into debt and were, by the time you became embroiled in this criminal enterprise, under some financial pressure.

15I note that you are not eligible for Centrelink benefits because you arrived in Australia after the cutoff point.  I noted in the course of the discussion that typically crop sitters in this kind of criminal venture are persons that are under financial pressure or pressure of one kind or another and are seen to be vulnerable and therefore can often be persuaded, perhaps against better judgment, to participate in the crop sitting role and shoulder the risks that that entails.

16You must have realised as soon as you became involved in this criminal enterprise that you were attaching yourself to a significant crime and that you were taking risks for money.   You did so substantially for greed although I accept that you were under some financial pressure at the time that you entered into the undertaking.

17You apparently did not commit any offences in the 12 months between the fire and you surrendering yourself to police.  I have noted already that your prior court appearance was for offences that are insignificant so far as this sentencing exercise is concerned and I therefore accept that at the age of 27, which you now are, you have good prospects of rehabilitation.  There is no reason to think that you will not be able to put this behind you and to get a job and lead a decent and honest life if you so choose.

18It does not seem that you are burdened by any substance abuse issues to the extent that you have any issues which perhaps need addressing.  It might be on the gambling side but it has not been suggested that your gambling was at a level that represents a problem that will necessarily impact significantly on your life in the future.  For those reasons, I think that - even though you are 25 years of age and not strictly a young or youthful offender, you are still a young man, 25 years of age at the time of the offending, 27 now and I think rehabilitation is an important factor in the sentencing process.

19Your counsel obviously relied upon the fact that  you have pleaded guilty and indicated a willingness to plead guilty at an early stage which is further consistent with her submission that you are remorseful.  I am inclined to give you the benefit of the doubt, that you are remorseful now for your offending conduct and that entitles you to a discount in sentence just as your plea of guilty entitles you to a discount in sentence.

20There are some other matters which are relevant.  One is that you are a foreign national with limited English skills in the prison system and there is no doubt that persons with those characteristics have more difficulty in coping with a term of imprisonment.  That is further exacerbated by the fact that you do not have any family and friends who are visiting you in prison. English is not your first language and that sense of isolation will undoubtedly make your imprisonment more burdensome than for somebody without those difficulties.

21Because you are a New Zealand citizen and I understand no longer a Vietnamese citizen and you are not an Australian citizen, there is a prospect that you will be deported at the conclusion of your sentence.   If you are deported it will be most likely to New Zealand and even though there is no certainty as to that occurring, it may reasonably be supposed that it will and you are in that stage of uncertainty which itself will be preying on your mind during a period in custody and no doubt causing you a good deal of worry because you do not any longer have any contacts of any note in New Zealand and it would essentially be a strange land to you now.

22You also, I am told, would like to consider the option of going back to Vietnam to be with your mother.  That may or may not be open to you.  You are not a Vietnamese citizen, as I understand it, and your conviction for this may play its part in determining whether you will be entitled to travel to and/or live in Vietnam.

23Your preference would have been to stay in Australia and be with your father in Sydney.  That may not be an option that is ultimately open to you.  This state of uncertainty is undoubtedly going to play on your mind and further make your period in custody more burdensome.   I take those matters into account in a significant way in determining the appropriate sentence.

24As your counsel rightly points out, offences of this kind are serious and are to be treated seriously by the courts.  The maximum term of imprisonment is 25 years and that is a factor that I am bound to take into account.  On the other hand, as I have also pointed out, in my opinion current sentencing practice is too low and I am bound to sentence you within the bounds of current sentencing practice.

25I am also required to express the denunciation of this court in passing sentence of any conduct of this kind to punish you adequately and to offer a degree of protection to the community in imposing sentence.  Most importantly I am required to impose a sentence that has the capacity to deter others from committing offences of this kind.   That is particularly significant in offending conduct of this kind.  I am also required to consider the need to deter you from committing further offences although I have indicated that I think you are good candidate for rehabilitation and I suspect that his period of imprisonment will have acted as a significant deterrent to you already from committing further offences.

26I have been provided with the sentencing snapshot for offences of this kind and also the overview of cases concerning offences of a similar character which shows that there is a wide range of sentences that have been imposed in the period since 2007 for offences of cultivating a narcotic plant.   Obviously there are factors that bear upon the level of sentencing including the quantity of the cannabis plants that were involved, the weight of the cannabis plants involved and whether the matter was dealt with by way of a plea of guilty or not guilty and a whole range of other factors which are not disclosed in the table that would have borne upon the sentencing in the individual cases to which they relate.  As your counsel pointed out, every case has to be decided on its own facts and this is no different.

27It was submitted by your counsel that the time that you have already spent in custody, which amounts now I am told to 173 days, would be sufficient or nearly sufficient as a measure of time that you should actually serve for this offence.  I indicated that I thought it was short of that which you should be required to serve.  However, there are a number of factors which I have already mentioned that do move me towards that level.

28I treat you as an offender at the lower end of the range but not at the bottom of the range.   But I am inclined to reduce your sentence significantly by reason particularly of your plea of guilty and the isolation that you will feel and the fact that the prospect of deportation will be a significant concern that you will have to wrestle with whilst you are serving your sentence.

29It was submitted that one alternative approach to sentencing would be to impose a suspended sentence, a partially suspended sentence which would enable you to be released at a time certain at the conclusion of the period that was not suspended and would have the advantage of you having hanging over your head for the period during which the sentence was suspended the balance of the sentence to act as a further deterrent to you from engaging in conduct of this kind again.

30I am attracted to that approach and I regard that as an appropriate sentencing option.  I think that it is agreed between counsel at any rate, and I think Mr Roper is about to confirm it ‑ ‑ ‑

31MR ROPER:  Yes, Your Honour.  I was just looking at - the definition of significant offence does not include commercial trafficking.  It does oddly enough include large commercial and commercial trafficking but not cultivation.

32HIS HONOUR:  Thank you for that.  It seems to be within my power to impose a partially suspended sentence.  I certainly do not regard the period of 173 days as an adequate term of imprisonment to mark the seriousness of your offending conduct, even taking into account the matters in mitigation to which I have referred and doing my best to balance all of those factors and giving the prominence that I have spoken of to your rehabilitation, I am ready to impose sentence upon you.  Would you stand please?

33For the offence of cultivating a commercial quantity of cannabis L, I sentence you to a period of imprisonment of two years and six months and convict you.

34For the offence of theft of electricity, I convict you and sentence you to imprisonment for a period of 12 months and that will be concurrent. 

35The total effective sentence is therefore two years and six months and I suspend that sentence all but 12 months which will mean that you will have to serve a period of 12 months and the balance of the sentence will be suspended for a period of two years.

36That means you will not have to serve the balance of the sentence after you are released at the conclusion of the 12 months provided you do not commit any other offences during the period of the suspension that are punishable by imprisonment.  If you do commit a further offence punishable by imprisonment, then you will be liable to be brought back before me or before another judge of this court and you will almost certainly be required to serve the balance of the sentence of two and a half years that I have imposed upon you.

37But for your plea of guilty, I would have sentenced you to three years and three months' imprisonment with a non-parole period of two years.  I declare 173 days of pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and to be deducted administratively from the sentence you will actually have to serve and that will be noted in the records of the court.  And I make the order for compensation and for disposal of property and also the order for the provision of a forensic sample.  None of those applications for those orders is opposed. 

38I must say about the provision of a forensic sample, that whilst you are in custody, you will be requested by an authorised officer to provide a forensic sample by a scraping from the inside of your mouth and if you provide the officer with that scraping when called upon to do so that will be the end of the matter, if you do not then the officer will also be authorised to take a blood sample from you and may use reasonable force to take that sample.  I do not suppose you will put the officer to that trouble.  So you have got drafts of those orders, have you?

39MR ROPER:  I have got drafts of them, yes.

40HIS HONOUR:  I will sign those drafts in due course.  Are there any other orders I need make?

41MS MUNSTER:  No, Your Honour.

42HIS HONOUR:  You may sit down for the moment, thank you.

43MR ROPER:  I just note the compensation order, Your Honour, the original amount put on there was incorrect.  My instructor is simply altering that by hand and if Your Honour would initial that just to make it clear that it is the ‑ ‑ ‑

44HIS HONOUR:  Yes.  It is not the 15,960.66 any longer.

45MR ROPER:  Yes.  It has got the wrong amount.  It had the non-GST amount on the original but it has been altered, it has been amended, Your Honour.

46HIS HONOUR:  All right.

47MR ROPER:  So the in records of the court it will show ‑ ‑ ‑

48HIS HONOUR:  I will work my way through it, Mr Roper, and I will come back to you if I need any more help. 

49MS MUNSTER:  Your Honour, may I approach Mr Do?

50HIS HONOUR:  Yes, certainly.  I have signed those orders, Mr Roper.  As a general comment and this may not have any influence on anything but it does seem to me that in cases where absentee landlords let their properties willy-nilly through real estate agents who pay no attention to what is going on in the properties that they are supposed to be managing deserve to lose their properties.   Unless and until that occurs, these offences will remain as prevalent as they are.  So it seems to me that either the law needs to be changed or enforced in a way that achieves that end because ‑ ‑ ‑

51MR ROPER:  It is quite extraordinary sometimes, Your Honour, because there was a case where a landlord lived in the same street as the crop house but disavowed any knowledge of the - it was a few houses down.

52HIS HONOUR:  You might reasonably infer that they know what is going on or at least are turning a blind eye to what is going on and I am staggered by the prevalence of this sort of offending as well as of course the clan labs that are used for purposes of methylamphetamine manufacture.  The ice industry is alive and well.  Sometimes it is factory premises, sometimes it is private houses. 

53All the landlords in my opinion should be losing their properties and until they do, whether it be a farm, whether it be a factory, or whether it be a private house, then this offending is going to continue.

54MR ROPER:  This snapshot, Your Honour, numbers for that period 2008 to 2013 is 400 people sentenced for this offence.

55HIS HONOUR:  400 people sentenced, yes.

56MR ROPER:  For commercial cultivation.

57HIS HONOUR:  Yes.  There would be an equal number, I would think, in the next four or five years unless something is done about it and there are two ways of approaching it.  One is to increase the current sentencing practice.  The other is to attack the assets of those who permit this to occur and I say that in a broad sense.

58MR ROPER:  I will certainly convey those comments to the Office.

59HIS HONOUR:  I certainly would not have been the first person to have expressed those sentiments but perhaps the more people who do and do so publicly, the more likely it is to have some effect.  But you cannot help sitting here on a daily basis and seeing the string of people that go through, not just in relation to cannabis but methylamphetamine which is just as, if not more, prevalent in its manufacture in similar circumstances to think that something more drastic needs to be done in that regard and attacking the assets purely of the persons convicted themselves is not sufficient because usually those assets are protected in one way or another to the extent that there are any or they do not have any assets.

60MR ROPER:  They don't have any.

61HIS HONOUR:  So it is those who, as I say, in the broad sense permit this to occur that have the capacity to put an end to it or at least reduce significantly the amount of criminal activity that is taking place as we speak.  Anyway I am sorry, Ms Munster, that has nothing to do with your client really and I think I will provide you with the certificates in case they are needed in some other forum.

62MS MUNSTER:  Thank you, Your Honour.  I have found those cases, Your Honour, that I referred to but I do not propose to - I did have them, I got flustered, but I do not propose to re-agitate that.

63HIS HONOUR:  Ms Munster, I ‑ ‑ ‑

64MS MUNSTER:  And Your Honour is well aware of them anyway.

65HIS HONOUR:  I don't think that it will have made any difference.  I think your assessment of them was sufficient.  Thank you, Madam Interpreter.

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